separation

At the risk of appearing obsessed, I write a second time about the separation of Jeff and Makenzie Bezos. This time my subject is again borrowed from the Wall Street Journal, but it’s not about the money. Rather, the Journal produced a prominent and adulatory article about the divorce announcement by the couple (actually Jeff) on Twitter. I thought it interesting because anyone who separates from a spouse or long time relationship is left asking; how do I let people know?

In olden days, this was done either by phone or in person. It creates an awkward moment because if you are the person getting the news, you are not certain just how to react. After the “I’m sorry to hear that….” the question becomes how far does the inquiry go? It seems cold to stop with the vague “I hope it works out.” Yet, is the person making the announcement asking for absolution? Therapy? There is no happy answer.

So, I think there is merit to a public announcement and despite my general abhorrence of Twitter, I see benefit in getting the word out. I don’t know whether it requires a “joint” announcement as the Bezos posting suggested. For most of us, separation does not suggest that we need to “calm the market” in Amazon stock. However, the many lawyers and therapists who commented upon the Bezos announcement liked the idea of controlling the message and communicating that the problems either have been or will be handled with civility.

If you read what was posted by Mr. Bezos, it was a bit treacly. In part, it says:

“After a period of loving exploration and trial separation, we have decided to divorce and continue our shared lives as friends.”

Perhaps this was all so amicable, but the news was immediately accompanied by reports that Herr Bezos already has a girlfriend. It also throws shade on the ambiguous phrase “loving exploration.” But, back to the main point… People want to know if you are separating. If they truly care about you, they would like to know things will be civil even if that is merely an aspiration. It is also a good way to signal to your spouse how you want him or her to respond. The beauty of the electronic approach is that it gets the word out and allows friends to control a responsive dialogue on their own terms.

I don’t do Twitter because I have witnessed a thousand prominent people see their public persona crash and burn. They did not think before they wrote. Twitter is best known as a place where people say stupid things. But perhaps Twitter might actually become an instrument of civility rather than a semantic battleground.

What to say? Well it may be ideal to issue a joint announcement. It is rare for couples to be finished with each other at the same time. Usually, one spouse is the catalyst. If that is your situation, keep it simple and avoid what will be perceived as over the top sentimentality.

“I wanted to let friends and family know that (Jeff ) and I are separating. I am hopeful that this process will preserve our dignity and not draw you into a conflict where you will feel the need or desire to take a side. I hope our friends will remain just that although we may no longer be a couple.”

Message sent. Now, when you run into the neighbor in the frozen food aisle, they “know” and can ask either how it’s going or confine the conversation to whether chicken Florentine is good with arugula. The recipients also know that you want to be an adult during the process.

So am I on the road to conversion as a Twitter acolyte? Perhaps. But then there is the recurring fear that if I joined the social media band no one would “follow.”

My colleague, Mark Ashton, reported on the case of D.P. & B.P. v. G.J.P. & A.P., and identified how the Court’s opinion addressed on a limited basis how Section 3525(2) was, in part, unconstitutional by placing an unreasonable restriction on the parents to raise the children as they deem appropriate, including restricting the children’s exposure to their grandparents. This decision left open many questions about what happens in circumstances other than separation of six months or more which will likely need to be addressed in the future as grandparents seeking custody re-frame their arguments based on this decision.

One point that I found compelling was that this decision articulated a rejection of the implicit idea that separation, in of itself, equated an unfitness of the parents. As the statute was written, if parties were separated by six months or more then grandparents have standing to bring a custody action. The Court recognized that the statute basically treated separation as a “flaw” and “implicit presumption of unfitness” of the parent when in reality there are numerous parents who parent very effectively while separated and/or divorced, while there are couples in intact marriages who are terrible parents. The Court felt that being separated did not justify a third party needing to step in for the children’s best interests or for the state to exercise parens patrie powers. Separation does not equate abuse, neglect, or an inability to perform parental duties.

Finally, the court reiterated prior case law that when a custody dispute arises between parents and a third party, “the evidentiary scale is tipped, and tipped hard, to the parents’ side.” So, as pointed out in Mark’s blog on this case, the door has been cracked for dealing with grandparents’ standing in cases, there is no doubt that the desire of the parents will create a significant hurdle for the grandparents to overcome even if they establish standing.

On September 26, the Pennsylvania Senate returned to session and adopted amendments to the Pennsylvania Divorce Code that reduced the period by which a party can secure a no-fault divorce on the basis of irretrievable breakdown from two years to one. The bill is awaiting signature by Governor Wolf.

When first enacted in 1980 the Divorce Code required a three-year separation before a divorce could be obtained on no-fault grounds without consent. In 1988 the law was amended to reduce the waiting period to two years. Legislation to further reduce the wait was introduced in February, 2015 and secured approval from the House of Representatives in June of 2016.

The new law does not affect pending divorces and does not become effective until 60 days after Governor Wolf signs the bill. But it is a major change and will bring improvement to the lives of many for whom divorce is a financially and emotionally draining life event. Ironically, while many argue that this will only promote divorce, the greatest number of divorces to be processed in any one year, came in 1979, the year before no fault came into play. Today the number of divorces is much lower than in the 1980s and 1990s but the real cause for that statistic may be the reluctance of millennials to embrace marriage as the sine qua non of a meaningful relationship.

There is also an amendment to Section 3323(C.1) of the Divorce Code related to bifurcation. It mandates that Courts evaluate the impact of a proposed bifurcation on any minor children of the marriage as it relates to the economics of the case.

This author is not much for the world of Hollywood although this law firm does have an office there. But in reviewing the general news of the day, the screen divulged that the divorce involving Halle Berry and Olivier Martinez is now on hold, nine months after that party started.

This is a new phenomenon affecting the ordinary world as well. We have several cases where the parties have either found a reason to stop the presses of divorce filings or just take a pause to refresh.

In olden times, like the 20th century, a break in the action was very rare. Once a split occurred both parties tended to pound away until the case was either litigated or settled. There was no “Finland” or Christmas 1914 when soldiers from the Allies and Axis gathered to sing “Silent Night”. But today, people are doing a better job of taking stock in the havoc that divorce can wreak and sometimes they realize that things were not as bad as they seemed or that the man or woman who may have enticed a separation was not “the best” or even “better.”

The problem with a break is a financial one. For people securing divorce, trust levels are low and the job of the lawyer is to identify the assets that existed at or about the time of separation and make certain they don’t disappear. That can be hard enough to do when the couple are unhappily split but when they re-unite only to divide once again, it is the task of the lawyer and the forensic accountant to make certain that during the Summer of Love or reconciliation no one stole or dissipated the assets to be divided. In many instances as well, reconciliation prompts decisions to buy a new home or to take the dream vacation that the couple always wanted. If the marriage survives, the couple can typically absorb that financial wave. But if things don’t work out, the financial burdens are now greater and, as we all know, houses can’t be split down the middle.

So if you decide to take a break either from exhaustion or out of renewed affection, just be certain to keep it real and maintain very careful records of your assets and expenses.

One other note. There certainly was plenty of news during the Johnny Depp/Amber Heard controversy that erupted this spring with allegations of physical violence. What made this matter all the more interesting is the fact that for both participants there was a lot at stake. Here were two people with enormously lucrative star power whose agents no doubt grimaced when the abuse case was filed. The risk was that either or both would be found to be violent or dishonest in their statements as to what occurred. The public tends to be tolerant of what celebrities do but no one ever got a lucrative role for unsocial behavior. Although there was a dust up at the end about “how” Depp paid the settlement, the end was otherwise peaceable and the brand names remain bankable. Even real world clients need to realize that while there is undeniable power in getting out the whole truth that truth can come with very drastic consequence.

After a recent meeting, my colleague Julie Manser and I were discussing what it must be like to be a mental health practitioner in an age of frequent divorce. Clients commonly ask us questions that are better posed to people with degrees in psychology and psychiatry and we often hear from our clients about what their psychologist thinks needs to happen in the context of a divorce proceeding. We would welcome similar insights from our colleagues in the mental health community but, for the moment, we will confine our thoughts to what mental health professionals need to know about divorce in Pennsylvania. As with all legal advice, nothing substitutes for the custom fit of advice tailored to the actual facts, but absent all of the facts, here are some general things that all people should know even if they don’t have mental health training.

1. “Am I legally separated?”

This is actually a complicated question with many answers. Before 2005, the definition was the cessation of all cohabitation but even then people living in the same house could be legally separated if they let the world know that the marriage had attained “Game over” status. The courts looked for outward manifestations of separation such as separate bank accounts and the absence of the couple from family events like weddings, Thanksgiving, or religious celebrations.

The courts also looked to signals that the separation was not merely practical (separate jobs in separate towns) but hostile. These standards still exist and are not easily defined. But in 2005 the General Assembly came to the rescue with a law that said a presumption of separation was created by filing for divorce. So the shorthand of this is that Pennsylvania does not have a bright line test of legal separation but a presumption that it is in effect if one party has filed in Court to end the marriage.

2. “If I leave the house will I lose my rights to the house or my kids?”

No, but don’t be stupid either. We routinely hear stories of people who live in very real jeopardy of physical harm from an abusive spouse because they know that if they left, they would lose all rights to the marital residence and even their children. It would be abandonment, right? Well, no. Departure from a house to evade the risk of violence or even to collect your own thoughts is not going to be viewed as abandonment. In fact many police departments responding to domestic violence calls will tell one of the parties that it might be wise to spend the night elsewhere. Nothing wrong with that. But, the longer you stay away voluntarily, the greater the risk that you will create a new status quo where a court will find that it is in everyone’s best interest to keep you and your spouse apart.

So if you leave for a night or two to stay with a friend or relative and weeks go by without your returning, you do have a risk that a court will award the spouse who remained exclusive possession. That may actually be advantageous to you but any competent lawyer will want to know all the facts before advising you to stay or leave.

So, a night away is not going to cause irreparable harm but as one night grows to two or seven or fourteen, realize that you might be creating a case for one party to get exclusive possession. Understand that exclusive possession is not a forfeiture of your rights to whatever equity your home may have. That money will be counted so long at the house was acquired while you were married.

They do say that, but divorce cases have very few “default” provisions for failure to file. That is different than regular civil cases like contracts or personal injury claims. If you are served with a divorce complaint in person or by registered mail, you really should put legal advice on the agenda. While the system is kind of “rigged” to prevent default divorces, many divorce actions are filed with corresponding actions for support, custody or “special relief” including requests to freeze assets or for exclusive possession of a house.

When your patient looks through the package of materials, they should be looking for anything that gives them a specified date and place to answer a request for relief. Thus if a person is sued for custody of a child, the paperwork will typically state a date and time for a conference or hearing. The same is true for support. You may see paperwork that references claims for support or custody but no hearing times are anywhere to be found. This means that the suing spouse is making the claim but has not asked for a hearing on it. This often occurs when couples are still in the same house. Courts are chary to immerse themselves in deciding support or custody if both adults still live together.

The key here is to carefully review the materials and check to see if anything is “scheduled”. If something is, pay attention to it and don’t wait until the last day or hour to find out about your legal rights. Otherwise you may find yourself ordered out of the house with your assets frozen.

Since the inception of equitable distribution in Pennsylvania on July 1, 1980 the law has consistently been that courts have power to divide marital property. With certain exceptions for gifts and inheritances, marital property is all property “acquired” from the date a couple marries to the date they finally separate 23 Pa.C.S. 3501(a). The challenge in several cases has been to determine when property is “acquired.” To that evolving legal concept we now have not only a reported decision in Yuhas v. Yuhas but one decided by a nine judge panel of the Superior Court. The decision was rendered on October 28 by a 6-3 majority.

Husband was a surgeon. He developed Carpal tunnel syndrome during the marriage that effectively ended his career. Fortunately, he had a disability insurance policy that was acquired shortly after he and wife married. At various times the couple paid for this policy from personal funds. Other payments were funded by his practice. In April, 2007 husband applied for his disability benefits. In July, 2007 the application was approved. In that same month the parties separated. The monthly benefit was $10,700 per month and was made effective January, 2007. The policy continues to pay although, it also requires that husband periodically prove he remains unable to practice surgery. Wife claimed that because the policy was acquired during the marriage the benefits arising from the policy were also marital. The special master appointed to hear the case concurred. The case was reviewed on exceptions by the Chester County Court of Common Pleas, which reversed the master and held that the post separation payments were “income” but not marital property. The decision of the trial court appears to have turned on the fact that the payments were not guaranteed but renewable premised upon proof of continuing disability.

In a supplemental opinion the trial court noted that the payments that accrued prior to the July separation were marital. It then analyzed the case in light of the Supreme Court decision in Drake v. Drake, 725 A.2d 717 (1999) where a workers’ compensation award was to a lump sum payment prior to the separation date. Because this was an “ongoing” claim for disability and not a commuted lump sum payment the trial court saw each monthly payment as a separate right accruing post separation.

To this decision, the Wife appealed. Her contention was that the event giving right to the income took place prior to separation as did the approval of the claim. She also noted the 2011 Supreme Court decision in Focht v. Focht 32 A, 3d 668 where a husband was injured in a raceway accident and filed suit with his wife before separation but settled the case after separation. In Focht the Supreme Court held that proceeds from a settlement made after separation are marital because they were acquired in exchange for a chose in action that accrued before separation. Id. At 674.

The Yuhas court noted that a cause of action accrues when the injury was inflicted under both Drake and Focht. But here the disability did not arise from an injury and were not received as the result of an award or settlement for a cause of action or claim.” 23 Pa.C.S. 3501(a)(8). The Superior Court holds that Husband did not “contemplate any legal action, nor did he possess a claim against anyone or any entity.” The Court then refers to the fact that the payments are subject to a condition subsequent. If husband recovers from the parathesia that prevents him from working as a surgeon the disability benefits are lost. For this reason, the Superior Court decided these post separation payments are non-marital.

This makes for an interesting analysis. Husband and wife bought and paid for a policy of insurance. The event covered by the insurance (the loss of the ability to be a surgeon) occurred during the marriage. The right to receive the payment for loss was affirmed before separation as well, albeit subject to the condition subsequent. The opinion state that Husband had no claim against anyone or any entity. Did he not have a claim against the insurer if the insurer had denied the disability claim. His action would have been in contract and not tort but is that a distinction contemplated by Section 3501(a) (8) which speak of “any cause of action or claim”

The immediate prompt for this brief article is the report on February 23, 2013 that Tiger Woods and his ex -wife Elin Nordegren were spotted at an event where they spoke together not for 30 seconds but 30 minutes. In one sense this is not newsworthy at all but during the week, I had a spate of cases where I know the parents or friends and family of recently separated couples and where the parents/friends/family always knew that this marriage could not last and/or the couple never belonged together or he/she changed and is now unworthy of the friend or family member. This happens every day but when it happens to friends and family we want to rush to support the person we are closest to with words of support.

Express those views with caution or at your peril. Yes, you never did like his wife or her husband. Yes, you saw all of the failings and frailties that your friend or loved one could not see; blinded by good looks or charm or in too many case: “none of the above”. But when your friend finally screws up the courage to end the relationship or move in that direction, be aware that today, the rules are different.

Separation and divorce are never easy. As folks who see this everyday, we recognize that a failed relationship is a difficult thing to face. But in many cases, “history” or “children” or whatever mean that there is a wide gulf between separation and divorce. Friends and family who step into that breach with their views do so at their peril as couples often second guess themselves today and decide to reconcile. If that occurs, your candor in expressing your views about the spouse is the only things that is left and sometimes that means loss of a friendship or relationship that you treasure.

If your friend or family member comes to confide in you that he or she needs to end their relationship with a spouse, be supportive. But do so knowing that many marriages irretrievably broken on Monday are back together in some bizarre way by Thursday and that too much vocal support at your end could end up costing you an important friendship.

While reading a press release by the American Academy of Matrimonial Lawyers this afternoon, I realized individuals in the midst of a divorce regularly receive warnings about what is acceptable and safe to post on Facebook and what might get them in trouble. They also receive advice from their counsel about when it is appropriate to start dating again and when, for strategic reasons in a divorce or custody case, it might be best to wait. But what about when the two collide and people in the middle of a divorce put a profile on an online dating site? Here are five things I hope my clients never put on their online dating profiles:

1. Pictures of your kids: While your children are undoubtedly adorable, your spouse (or ex-spouse) will have a field day in a custody case with the family photographs you put on your dating profile. Your decision to upload a picture of you with your child from last Christmas may have been completely innocent, but the other parent can easily turn it around on you, claiming you are using your children to find dates or exposing your children to internet predators.

2. A claim you don’t have kids (when you do): The exact opposite of putting pictures of your children on your profile, if you have kids, don’t claim you are childless on your dating profile. Immediately, the other parent will claim you must not love your children if you won’t tell anyone about them.

3. Anything about your income: If you are in the middle of litigating your income in a divorce or support case, and claiming in court that you make less than $50,000 a year, stating on your online dating profile that you make more than $200,000 per year might not be the wisest move. While it might attract people that otherwise wouldn’t respond to your profile, you will pay for it dearly in court.

4. Stating you are divorced, or single (when you aren’t): Often times in a divorce or support matter, the date you separated from your spouse is very important. If you posted that you are single on your dating profile, weeks or months before you spouse knew your marriage was over, you may have set your date of separation unintentionally. You may have also admitted infidelity (or at least an attempt at infidelity) prior to your official date of separation, which may preclude you from collecting spousal support. To be safe, I wouldn’t put up a profile on a dating site at all until you are definitely separated.

Additional benefits also may include the continuation of medical and tax benefits. For some cases, medical coverage is a critical aspect due to a major medical condition or insufficient income to obtain independent insurance coverage, while most people benefit from filing their taxes jointly.

Issues to consider, particularly in Pennsylvania where there is no “legal separation” per se, is that being separated has no legal effect on things like Social Security, insurance benefits, estate benefits, or retirement benefits. Some retirement plans designate the spouse as the beneficiary of the plan, therefore, if the spouse dies during the period of separation, the benefits pass to the other spouse as if the separation never occurred. In Pennsylvania, until a grounds order is entered, you are married and death benefits, property rights, etc. will pass to the surviving spouse by operation of law.

Long-term separation is often a convenient arrangement, rather than a desired situation. In many cases, it forestalls the inevitable divorce, but on the other hand, it may just be a way to deal with a marriage that he ceased to work in a traditional sense, but that those involved find too much invested to sever the legal ties to one another. Like all things, there is no cookie-cutter approach to long-term separation; each situation requires careful consideration of the benefits and risks (ex. Joint taxes maximizes tax benefits, but also can exposure each party to liability for what is disclosed in the return). Finding the balance between an unhappy happy and a tolerable (if not happy) separation is not easy, but it could the best solution for some people.

Every once in a while, a good deed does not go unpunished. About a month ago I received a call from an acquaintance with whom I worked performing community work several years ago. Could she stop in and chat? As one might expect, people do not just stop in to “chat” with divorce lawyers without some particular thoughts in mind.

We met for about 20 minutes. By the standards of our parents’ generation she had the perfect marriage. Beautiful kids, financial security and prominence in the community. But as is so often the case things were not feeling that way. There was a suggestion that perhaps her spouse had not been faithful and, being an intelligent woman, her response was to research. The results were not encouraging. Because we knew each other, I got what I call the “ultimate question”. Was it time to end it? Personally, I hate this question. I have been doing this line of work for almost thirty years; I have been married twice during that time. But, who am I to tell another person whether he or she should try to preserve a relationship that was once seen as a lifetime commitment? There are days when I hear stories that make me want to blurt out: “You must be kidding.” But that’s not a lawyer’s role. Lawyers are at their best when they are Socratic. Ask the questions. Explore the options. Then let the client make the decision.

The subsidiary question I had posed in this meeting was whether marriage counseling made sense. Having once done it, I am not a big fan of marriage counseling. It is my own belief that when confronted in meetings by people we don’t know, our first goal is to try to look like reasonable people and to impress our new found acquaintance, the marriage counselor. Of course this comes at a price and that price is called ‘candor’. Second, there is a tendency to pull punches. I wish I could recall how many times a client has lit up in appreciation when I observed that it sounded like a spouse was more committed to a job or the children than the marriage. A recent article about how couples fight about money noted that many fights over money are merely stalking horses for other issues. I can’t look you in the face and tell you that I am unhappy about your weight, your lethargy, your inability to discipline our child, your fawning admiration of the idiot neighbor. But I can easily summon the courage to tell you that you should mow your own lawn or cut back on the credit cards.

So, I find that marriage counseling tends to work best as a second step. Step one is to see a counselor individually and do the preliminary work. With your own counselors you and your spouse can each let loose not only about each other but about what is working or not working in your own life besides your marriage. You can say what you want and not fear immediate rebuttal, rejection or impeachment. You can hopefully sort out where life has brought you and, most important; where you want to go next. That next step may mean separation and divorce. That’s alright too. But many times, individual therapy causes the patient to gain perspective. Also, don’t kid yourself. In individual therapy it’s easy to throw the punch and, as Napoleon once suggested, blame everyone not in the room. A good therapist is going to spar with you; challenging your views and asking questions intended to make you think.

Once you have put some time into getting your own emotional house in order; it is time to take the show on the road and do some couples counseling. But if your individual counseling convinces you that you are absolutely destined to end your current relationship; then don’t dishonestly go into marriage counseling. Ask your spouse for permission to speak to her therapist. Lay your thinking on the line. If nothing else this will help your spouse get insight from her own therapist as to how you got to your conclusion. That’s healthy for both of you.

I’m also a big fan of the written word. Not the texted or instant messaged thought. I mean something you will put hours into just as you did a paper in college. Your marriage is a relationship in which both you and your spouse have made an enormous investment. Don’t sell out cheap.

Divorce is often made more expensive because the lawyers are carrying their clients heavy emotional baggage. Carry your own. You will not find it pleasant but you will ultimately feel better about the experience. And you will save a stack of money.

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